Monday, February 22, 2010Last Update: 4:11 PM PT

HIV-Positive Pilot Wins Appeal in Privacy Case

By ELIZABETH BANICKI

(CN) - A pilot who hid his HIV-positive status from the Federal Aviation Administration for fear of discrimination is entitled to damages for emotional pain, the 9th Circuit ruled, because the FAA and other agencies violated his privacy rights by swapping the information while investigating his disability claim. When the plaintiff pilot was diagnosed with HIV in 1985, the FAA routinely refused to issue medical certificates to individuals with HIV who were taking antiretroviral medications. So the plaintiff, who'd been a private pilot since 1964, grounded himself and did not renew his certificate until 1994. He applied for and received renewals over the 10 years following the initial 1994 renewal without disclosing his diagnosis to the FAA. "[Plaintiff] feared that knowledge of his status as a gay man with HIV would result in discrimination against him in employment," the ruling states. After his symptoms worsened in 1995, the pilot applied for long-term Social Security disability benefits, which he received for one year, apparently with "the understanding that the medical information disclosed in his application would be held confidential," according to the ruling. Social Security, the Department of Transportation and the FAA soon discovered conflicts in the information he'd provided to each agency, prompting them to compare data. The plaintiff was later convicted on one count of making and delivering a false official writing. He sued in federal court, claiming the departments violated his right to privacy by exchanging his records. He said this resulted in humiliation, embarrassment, mental anguish and other severe emotional distress. The district court ruled for the government after finding that the nature of the pilot's damages did not present a "genuine issue of material fact," and that the term "actual damages" was ambiguous. The court did not reach a decision on the privacy claim. On appeal, a three-judge panel in San Francisco reversed. "Given the nature of the injuries that most frequently flow from privacy violations, it is difficult to see how Congress's stated goal of subjecting federal agencies to civil suit for any damages resulting from a willful or intentional violation of the [Privacy] Act could be fully realized unless the Act encompasses both pecuniary and nonpecuniary injuries," Judge Milan Smith Jr. wrote (original emphasis)."Congress clearly intended that when a federal agency intentionally or willfully fails to uphold its record-keeping obligations under the Act, and that failure proximately causes an adverse effect on the plaintiff, the plaintiff is entitled to recover for both pecuniary and nonpecuniary injuries," the panel concluded.